Cereghino v. Oregon Short Line R. R. Co. "Neither can it subject the streets and sidewalks of a municipality, dedicated to public uses of the people, to additional servitudes or burdens in aid of private undertakings and enterprises." Mr. Elliott, in his work on Roads and Streets, sec. 744 (2 Ed.), thus tersely, and, as we think, correctly, states the rule: "A municipal corporation cannot grant a right to construct a railroad in a street for private use. We suppose it to be indispensable to the validity of a direct legislative grant that in every instance the use should be public, for highways are held in trust for the public, for public purposes, and no other. This rule is clearly the legitimate sequence of the fundamental principles that private property can never be seized under the power of eminent domain for merely private purposes, and that roads and streets are held for the public use, and never for permanent private purposes." Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 98, 50 N. E. 256, 40 L. R. A. 621; Commonwealth v. Frankfort, 92 Ky. 149, 17 S. W. 287; Townsend v. Epstein (Md.), 49 Atl. 629, 52 L. R. A. 413, 86 Am. St. Rep. 441; Van Witsen v. Gutman, 79 Md. 405, 29 Atl. 608, 24 L. R. A. 403; Pittsburg, etc., R. Co. v. Iron Works, 31 W. Va. 710, 8 S. E. 453, 2 L. R. A. 680; St. Louis, I. M. & S. Ry. Co. v. Petty (Ark.), 21 S. W. 885, 20 L. R. A. 434. It appears from the record that the permit to construct the switch track in question was granted at the same session of the city council that the petition therefor was presented. The resolution granting the per2 mit is as follows: "No. 717. Oregon Short Line R. R. Co. Permission to construct a track on Third West Street and west to the warehouse of the Consolidated Wagon and Machine Company, between Seventh and Eighth South streets. On motion of Councilman Eardley the petition was granted." It will thus be observed that the city council, by resolution, has, in effect, granted the defendant railroad company a permanent franchise to construct and operate a steam railway on one of the public streets of the city, without any condi Cereghino v. Oregon Short Line R. R. Co. tions imposed as to the grade of the track or the manner of construction, and without any regulations as to its maintenance and the operation of the trains and cars to be moved over it. This is not only an unreasonableexercise of discretion on the part of the city council, but is in violation of the provisions of section 206, Revised Statutes 1898, as amended by Sess. Laws, 1901, p. 133, c. 124, and section 207, Revised Statutes 1898, which provide that the power of a city council to grant franchises to railroad companies to maintain and operate railroad tracks in any of the public streets of a city can only be exercised by ordinance duly passed, or resolution or by-law enacted in the same way. The power thus granted being legislative in character, it follows that an ordinance, resolution, or by-law by which it is exercised must be passed in accordance with the formalities required by law. The reason and necessity for this legislative requirement are very apparent. It gives people residing on or owning property in the locality of the proposed railway an opportunity to be heard in the matter, and to furnish information to the council, and, if their interests or that of the public demand it, make objection, and enter such protest as the circumstances and conditions may warrant. An opportunity for the people interested to be heard in matters of this kind is a right that must be maintained and kept inviolate. West Jersey Traction Co. v. Shivers (N. J. Sup.), 33 Atl. 55; Indianapolis v. Miller, 27 Ind. 394. It is argued by counsel for respondents that "the injury to plaintiff is no greater nor in any way different whether the grant from the city is valid or invalid," and that the municipality alone can successfully 3 make objection on this ground, and therefore plain tiff's only remedy is by an action at law for damages. There is a marked distinction between a railroad track about to be laid on a public street in pursuance of a franchise lawfully granted and one about to be constructed without lawful authority and in such a way as to become a public and private nuisance. In the one Cereghino v. Oregon Short Line R. R. Co. case the private citizen has no remedy save in an action at law for damages, but in the other, if he can show special damages, a court of equity will enjoin the threatened injury. 2 Dillon, Mun. Cor. (4 Ed.), 708; 1 Lewis, Eminent Domain (2 Ed.), sec. 117b; Henderson v. Ogden City Ry. Co., 7 Utah 199, 26 Pac. 286; Ogden City Ry. Co. v. Ogden City, 7 Utah 207, 26 Pac. 288; Dooly Block v. Rapid Transit Co., 9 Utah 31, 33 Pac. 229, 24 L. R. A. 610; 23 Am. and Eng. Ency. Law (1 Ed.), 958, 959; Penn. R. Co.'s Appeal (Pa.), 5 Atl. 876; Blanc v. Klumpke, 29 Cal. 160; Hargro v. Hodgdon, 89 Cal. 628, 26 Pac. 1106. Not only does the weight of judicial authority support this doctrine, but in this State we have a statute which gives the right of injunctive relief in cases such as the one under consideration. Section 3506, Revised Statutes 1898, provides that: "Anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered." Practically the same questions here presented were raised and decided in the case of Dooly Block v. Rapid Transit Company, supra. In that case the Rapid Transit Company obtained a franchise to construct a track for a street railway on one of the public streets of Salt Lake City, upon which there already existed a double track owned and operated by another company, which tracks furnished ample facilities for all cars necessary for public convenience. The plaintiffs in that case commenced an action in equity to enjoin the Rapid Transit Company from laying the track, alleging that an additonal track upon that particular street, as contemplated, would materially depreciate the value of their property abutting thereon. The 26 Utah 31 Cereghino v. Oregon Short Line R. R. Co. trial court found the issues in favor of the plaintiffs, and entered judgment perpetually restraining the defendant Rapid Transit Company from laying its track. On appeal, this court, after a very thorough and exhaustive discussion of the questions therein involved, affirmed the judgment of the trial court, holding that an additional track would be an unreasonable obstruction to and interference with the ordinary use of the street, and "that the act of the city council of Salt Lake City [granting the franchise] was unlawful, as being an unreasonable exercise of discretion." If the doctrine announced and conclusions reached in that case are sound and correct -and we think they are-it necessarily follows that appellant must prevail herein, as the facts in the case now before us show a much more unwarrantable and indefensible invasion of public and private rights than was there attempted. That part of the sixth finding of fact which reads "that the construction of said switch track is within the charter powers of the said railroad company," and the seventh, eighth, and ninth findings of fact, and the third conclusion of law are erroneous, as the same are not supported by evidence and the facts. The case is reversed, with directions to the trial court to set aside the judgment rendered and enter judgment for appellant, perpetually enjoining respondent railroad company from constructing the switch track in question. Costs to be taxed against the respondent. BASKIN, C. J., and BARTCH, J., concur. Christoffersen v. Craghead. NIELS S. CHRISTOFFERSEN, Respondent, v. GEORGE W. CRAGHEAD, Appellant. No. 1373. (73 Pac. 639.) Costs: Transfer of Interest by Plaintiff: Purchase from Grantee by Defendant. Under Revised Statutes 1898, section 2920, providing that in case of any transfer of interest other than by the death or disability of a party the action may be continued in the name of the original party, the action having been continued, as it properly might be, in the name of the original plaintiff, after he deeded the land in controversy, costs may be awarded against defendant, though, after the issue is found against him, he purchases the land from plaintiff's grantee. (Decided September 18, 1903.) Appeal from the First District Court, Box Elder County.-Hon. C. H. Hart, Judge. The opinion states the facts. From a judgment taxing the costs against the defendant, he appealed. AFFIRMED. B. H. Jones, Esq., and James S. Perry, Esq., for appellant. Nels Jensen, Esq., for respondent. STEWART, District Judge.-This cause was tried before a jury, as advisory to the court, May 25, 1901, and the court thereupon decreed plaintiff to be the owner of certain lands and water rights, and perpetually enjoined defendant from interfering therewith, and further awarded plaintiff his costs. Appellant contends that the trial court erred in denying defendant's motion |